An attorney for a Lee Malvo argued before a Maryland judge Thursday that the life sentence of the man convicted as a teenager of taking part in deadly sniper attacks that terrorized the Washington area is unconstitutional and should be thrown out. But prosecutors maintained that a Supreme Court decision deeming mandatory life without parole for juveniles unconstitutional does not apply in this case because in Maryland, judges aren't required to impose such sentences, but may do so at their own discretion.
Malvo was convicted in Maryland and Virginia when he was 17 for his role in the 2002 shootings that killed 10 people and wounded three in the District of Columbia, Maryland and Virginia. He later acknowledged shooting people in other states, as well. Malvo, 32, is serving his sentence at Red Onion State Prison in southwest Virginia.
His lawyer, James Johnston, argued during the hour and a half hearing on Thursday that Malvo's sentence should be tossed because the Supreme Court's decision determined that juveniles shouldn't be sent to prison for life without the possibility of parole except in rare circumstances in which a judge deems that they are "irreparably corrupt." That didn't happen in Malvo's case, Johnston said.
"It's not enough to look at the record and say we can imagine how a sentencing judge came to this conclusion," Johnston said, "because the law didn't exist then."
Malvo was not present in court.
Malvo was first put on trial in Chesapeake, Virginia, in 2003, in a case that was moved from Fairfax County in northern Virginia. He was convicted of capital murder. The jury had the options of a death penalty or life in prison without parole, and opted for a life sentence. Subsequently, Malvo struck plea bargains in Maryland and in Spotsylvania County, Virginia, in which he agreed to accept life sentences, without the possibility of parole.
John Muhammad, his partner in the shootings, was executed in 2009. Muhammad was from Baton Rouge, Louisiana.
Last month, a federal judge in Virginia ruled Malvo is entitled to new sentencing hearings in Fairfax and Spotsylvania counties in light of the Supreme Court's ruling. The Virginia attorney general is planning to appeal the decision.
Assistant State's Attorney Brian Kleinbord described Malvo's crime as "the worst criminal act ever perpetrated on our community," and argued that Maryland Circuit Judge James L. Ryan, who sentenced Malvo to six life-without-parole prison terms, took into consideration his age, his willingness to cooperate with the state and the fact that he expressed remorse for his crimes. Still, Kleinbord said, the judge determined such a sentence was appropriate.
"Every sentencing is a calculation," Kleinbord said. "Every time a judge gives life without parole is a decision that this person doesn't deserve a chance at rehabilitation."
"All that is necessary is a hearing in which a court can consider a defendant's youth and circumstances before deciding if a life without parole sentence is appropriate," he said, adding that he believes the original sentencing hearing fulfilled that requirement.
But Johnston argued that while the judge considered those factors, he could not have given them as much weight as is now required in juvenile cases, because the case law requiring him to do so simply didn't exist.
Maryland Circuit Court Judge Robert Greenberg indicated that he'd rule at a later date, in writing.
Throughout the hearing, he peppered both Johnston and Kleinbord with questions, including whether the extent and severity of Malvo's crimes should play a role in whether he's granted a new sentencing hearing.
"One can never say a homicide is run of the mill," Greenberg said. "But they don't begin to approach in nature the facts that Judge Ryan had to consider."
Johnston responded that the Supreme Court in its ruling "had the opportunity to carve out particularly heinous offenses, and it didn't ... there is no opt-out clause."
At a news conference following the hearing Montgomery County State's Attorney John McCarthy reiterated the stance that Malvo's sentence is legal, and should stand. The Supreme Court ruling, he said, "does not apply."
"Judge Ryan wasn't clairvoyant," McCarthy said, "but he made the factual findings that were necessary to sustain and uphold this sentence."
"You cannot find a more egregious case, where life without the possibility of parole is the appropriate sentence," he said. "There is an inescapable conclusion that the sentence given by Judge Ryan at the time is the appropriate sentence."
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